Public procurement in the fields of defence and security

SUMMARY OF:

Directive 2009/81/EC on the coordination of procedures for the award of contracts by contracting authorities or entities in the fields of defence and security

WHAT IS THE AIM OF THE DIRECTIVE?

• It sets out specific procurement rules for the defence and security sectors to open up the defence market in the European Union (EU) without putting at risk EU Member States’ legitimate security interests.
• It aims to increase competition and transparency in these sectors, to enable European companies to tender for more defence and security contracts throughout the EU.

KEY POINTS

Scope

• The directive applies, in principle, to all contracts for the procurement of military equipment, works and services and to sensitive purchases with a security purpose and involving classified information.
• Member States have the right under Article 346 of the Treaty on the Functioning of the European Union to exempt certain contracts from this directive when this is strictly necessary to protect their essential security interests.
• In accordance with settled European Court of Justice case-law, the exemption allowed under Article 346 TFEU is limited to exceptional and clearly defined cases. It must be demonstrated, based on a case-by-case assessment, that the conditions for applying it are fulfilled.

Review procedures

The directive allows for review procedures (i.e. the possibility for a tenderer* to challenge the award of a contract to another tenderer) aimed at providing legal protection of tenderers involved. The procedures also encourage transparency and non-discrimination in the awarding of contracts, without compromising Member States’ need for confidentiality.

Defence-related products

Directive 2009/81/EC was adopted as a part of a package including also Directive 2009/43/EC on transfers of defence-related products within the EU (see summary). The simplified transfers of defence-related products between Member States as set out in Directive 2009/43/EC are important for the proper functioning of cross-border tendering.

Evaluation report

A Commission report evaluating Directive 2009/81/EC’s implementation, published in 2016, concluded that the directive had helped open up the internal market for defence but that there was still room for further progress.

European defence action plan, European Defence Fund and collaborative procurement

To support more efficient spending by Member States on joint defence capabilities and to boost the EU defence sector’s competitive and innovative industrial base, the Commission launched the European defence action plan in late 2016. A key element of the plan was the creation of the European Defence Fund (EDF) to support investment in joint research and the joint development of defence equipment and technologies (see summary).

In 2019, the Commission published a notice providing guidance on various possibilities of cooperative procurement in the fields of defence and security. The notice also provides useful information on aspects relevant for carrying out projects funded under the EDF.

In February 2022, the Commission also published a communication on the Commission contribution to European defence, which includes a number of proposals to encourage the joint procurement of defence capabilities developed in a collaborative way within the EU.

Boosting the role of small and medium-sized enterprises (SMEs)

A 2018 Commission recommendation on cross-border market access for sub-suppliers and SMEs proposes measures to improve the position of SMEs in defence supply chains.

Amendments to Directive 2009/81/EC

The directive has been amended on several occasions with respect to the application thresholds (values below which it does not apply) for contract award procedures. The most recent amendment was Commission Delegated Regulation (EU) 2021/1950 which came into force on 1 December 2021.

FROM WHEN DOES THE DIRECTIVE APPLY?

It has applied since 21 August 2009 and had to become law in the Member States by 21 August 2011.

BACKGROUND

For further information, see:

• Defence procurement (European Commission).

KEY TERMS

MAIN DOCUMENT

Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC (OJ L 216, 20.8.2009, pp. 76–136).

Successive amendments to Directive 2009/81/EC have been incorporated in the original text. This consolidated version is of documentary value only.

RELATED DOCUMENTS

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Commission contribution to European defence (COM(2022) 60 final, 15.2.2022).

Regulation (EU) 2021/697 of the European Parliament and of the Council of 29 April 2021 establishing the European Defence Fund and repealing Regulation (EU) 2018/1092 (OJ L 170, 12.5.2021, pp. 149–177).

Commission Recommendation (EU) 2018/624 of 20 April 2018 on cross-border market access for sub-suppliers and SMEs in the defence sector (OJ L 102, 23.4.2018, pp. 87–94).

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – European Defence Action Plan (COM(2016) 950 final, 30.11.2016).

Commission Staff working document – Evaluation of Directive 2009/81/EC on public procurement in the fields of defence and security – Accompanying the document Report from the Commission to the European Parliament and the Council on the implementation of Directive 2009/81/EC on public procurement in the fields of defence and security, to comply with Article 73(2) of that Directive (SWD(2016) 407 final, 30.11.2016).

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Towards a more competitive and efficient defence and security sector (COM(2013) 542 final, 24.7.2013).

Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defence-related products within the Community (OJ L 146, 10.6.2009, pp. 1–36).

See consolidated version.

last update 03.03.2022